1341637 Ontario Inc. v. Xerox Canada Ltd., 2009 ONCA 775

CITATION: 1341637 Ontario Inc. v. Xerox Canada Ltd., 2009 ONCA 775

DATE: 20091105

DOCKET: C49382

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Juriansz and Rouleau JJ.A.

BETWEEN:

1341637 Ontario Inc.

Plaintiff (Appellant)

and

Xerox Canada Ltd.

Defendant (Respondent)

and

Shane Nagel

Third Party (Appellant)

Robin G. Le Fevre, for the appellants

Benjamin Frydenberg, for the respondent

Heard and orally released: October 30, 2009

On appeal from the judgment of Justice Andra Pollak of the Superior Court of Justice dated August 11, 2008.

ENDORSEMENT

[1] We do not agree that the trial judge erred in failing to apply the doctrine of contra proferentem and the principles that apply to contracts of adhesion before concluding that the appellant, Nagel, was personally bound. The trial judge properly ascribed weight to the fact that Nagel’s name was entered in handwriting as one of the contracting parties and that the signatures to the contract reflect this. The trial judge’s conclusion did not depend on any of the pre-printed clauses in the respondent’s standard form contract. In our view, the concepts relied upon by the appellant do not apply in these circumstances.

[2] There was evidence in this case that the used equipment had no market value and was not subsequently used by Xerox. Although the evidence was limited, it was not challenged and the appellant did not present any evidence that it had value. In these circumstances, we see no error on the part of the trial judge in not allowing any credit to the appellant for the residual value of the equipment.

[3] The appeal is, therefore, dismissed. We fix costs in the amount of $3,000, inclusive of disbursements and GST.

“D. O’Connor A.C.J.O.”

“R. Juriansz J.A.”

“Paul Rouleau J.A.”